Losing Direction: The ICTY Appeals Chamber's Controversial Approach to Aiding and Abetting in Perišić

Abstract

On 28 February 2013, the ICTY Appeals Chamber acquitted Momčilo Perišić, former Chief of Staff of the Yugoslav Army. He had been convicted at trial for having aided and abetted — through the provision of weapons and personnel — the crimes committed by the Army of the Republika Srpska in Sarajevo and Srebrenica. The Appeals Chamber found that, when the accused is remote from the crime, the prosecution must show that he/she specifically directed his/her assistance towards the perpetration of specific crimes and not only generally towards the realization of activities which could be either lawful or unlawful. On 23 January 2014, a different bench of the ICTY Appeals Chamber, in Šainović et al., rejected this theory and affirmed that specific direction is not an element of aiding and abetting in customary international law. This article explores the origins of ‘specific direction’ and concludes that although it comes up in some ICTY judgments, it has never been applied in the sense propounded by the Perišić appeal judgment. Given that the issue remains a source of debate in the jurisprudence, the authors consider the merits of both positions and question whether the temporal or geographical location of the alleged aider and abettor should change the legal elements of the mode of liability. They examine the implications of requiring that the provision of assistance must be directed towards unequivocally unlawful activities and conclude that requiring specific direction blurs the lines between aiding and abetting — an accessorial mode of liability — and forms of principal perpetration